Defendants contend that because New York has an agency with authority over this matter, i.e. the New York State Division of Human Rights ("DHR"), the 300-day period does not apply unless plaintiff first instituted proceedings with the DHR. Plaintiff concedes that she has not done so, but maintains that because New York has an agency with authority over this matter, the 300-day filing period applies, regardless of whether plaintiff actually instituted proceedings before that authority.

Although on its face the statute does speak of a plaintiff having "initially instituted proceedings" before a state agency, an analysis of the statutory scheme and relevant case law supports plaintiff's position. Pursuant to its authority under 42 U.S.C. § 2000e-4(g)(1), the EEOC has entered into a "Worksharing Agreement" with the DHR. The 1995 Worksharing Agreement applicable to the case at bar provides that:

The apparent reason for this provision is that 42 U.S.C. § 2000e-5(c) states that in a state which has a state or local law prohibiting the alleged unlawful employment practice and an agency to enforce that law, no charge may be filed with the EEOC until sixty days have elapsed after filing with the state agency, "unless such proceedings have been earlier terminated ..." Without the waiver provision in the Worksharing Agreement, a complaint filed 241 days after the alleged violation would prevent the plaintiff from meeting § 2000e-5(e)(1)'s 300-day time period for filing with the EEOC, unless the state proceedings terminated prior to the expiration of that period. The Worksharing Agreement avoids this result because the DHR has waived its right to exclusive jurisdiction over complaints filed more than 240 days after the alleged violation, allowing the EEOC to process such charges immediately. The DHR's jurisdiction over plaintiff's administrative complaint therefore terminated immediately upon the filing of the complaint.

The fact that plaintiff did not physically file the complaint with the DHR is of no significance, for two reasons. First, even if plaintiff had filed the complaint with the DHR, pursuant to the Worksharing Agreement, the DHR would not have exercised its jurisdiction over the complaint, and would have immediately referred the complaint to the EEOC. Second, the Worksharing Agreement also provides that "each [agency] designate[s] the other as its agent for the purpose of receiving and drafting charges." 1995 Worksharing Agreement P II(A) (quoted in Ford, 81 F.3d at 308). The EEOC's receipt of plaintiff's complaint, then, served as receipt by both the EEOC and the DHR.

In support of their motion, defendants cite footnote 6 of the Second Circuit's decision in Ford. Having stated that under the Age Discrimination in Employment Act ("ADEA") the filing period is extended to 300 days in states which have their own antidiscrimination laws, the court stated that "Title VII contains an additional requirement, not found in the ADEA, that must be met before the 180-day period is extended to 300 days: the person bringing the charge must 'initially institute[] proceedings' with the state agency." Ford, 81 F.3d at 307 n. 6 (quoting 42 U.S.C. § 2000e-5(e)(1)). The court noted that the plaintiff in Ford had met that requirement by filing with the DHR first.

Defendants, however, assign too broad a meaning to this statement. For one thing, in a later footnote, the court stated that Title VII's "60-day deferral provision means that the cautious complainant must file a claim with the state agency within 240 days of the alleged discrimination to ensure timely filing with the EEOC." Id. at 308 n. 7 (emphasis added). It is clear, then, that the court did not believe that a failure to file within 180 days would bar a claim from being presented later. It is equally clear that the court's reference to filing within 240 days was only an explanation of what is necessary "to ensure timely filing with the EEOC," and did not mean that a claim filed thereafter is necessarily untimely, for the plaintiff in Ford filed his claim with the DHR on day 281, and the court held that the claim was timely filed with the EEOC because of the DHR's waiver of its right to exclusive jurisdiction. Id. at 310.

Where the document on its face constitutes a charge within a category of charges over which the FEP agency has waived its rights to the [60-day] period of exclusive processing ..., the charge is deemed to be filed with the Commission upon receipt of the document. Such filing is timely if the charge is received within 300 days from the date of the alleged violation.

29 C.F.R. § 1601.13(a)(4).

The Second Circuit has stated that "the EEOC's interpretation of Title VII and its terms is afforded great deference." Ford, 81 F.3d at 309. This regulation plainly indicates that the EEOC sees no timeliness problem in situations like the one in the case at bar. I agree, and hold that the effect of the Worksharing Agreement is to extend the filing period to 300 days, making plaintiff's complaint timely.

In their brief, defendants also note that although the first paragraph of the complaint alleges that defendants have violated both Title VII and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296, the only count in the complaint alleges only that defendants have violated Title VII. Defendants also contend that any HRL claim would be defective because an EEOC complaint does not satisfy the HRL's requirement that a plaintiff first file a complaint with the DHR.

For the reasons already stated, I reject the latter assertion. Pursuant to the Worksharing Agreement, plaintiff's EEOC complaint satisfies the state-filing requirements of both Title VII and the HRL.

It is true that there is no expressly stated cause of action under the HRL in the complaint. It is obvious that defendants have been put on notice that plaintiff does allege a violation of the HRL, however, and since this is purely a technical defect, I grant plaintiff's request that she be permitted to amend the complaint to add a claim under the HRL.

CONCLUSION

Defendants' motion to dismiss the complaint (Item 6) is denied. Plaintiff shall have twenty (20) days from the date of entry of this Decision and Order to file an amended complaint adding a claim under N.Y. Exec. L. § 296.

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